February 22, 2016

DAVIES | Associate Justice Ted Cruz

Mere hours after Supreme Court Justice Antonin Scalia was found dead two weeks ago, the Washington machine was alight. The two parties were mudslinging in the halls of Congress, with Republicans vowing to reject any Obama-nominated replacement and Democrats excoriating them for such barefaced politics. Around the country, public sector unions and women, among others, rejoiced at their salvation — Scalia’s death dissolved the Court’s conservative majority. As the Supreme Court considers cases involving religious freedom, state marijuana laws and legislative districting rules (which could have large effects on parties’ electoral strength in some states), conservatives have lost control at a precipitous moment.

The aforementioned unions are watching Friedrichs v. California Teachers Association, a First Amendment case which, if the Ninth Circuit’s decision is upheld, would imperil public unions’ funding. Despite having ruled on this issue in Abood v. Detroit Board of Education (1977), the Court’s conservative majority was predicted to overturn Abood and rule against the union.

Whole Woman’s Health v. Hellerstedt, an abortion regulations case, is also scheduled to be decided this term. The Court will consider whether Texas law H.B. 2 places undue burden on women seeking an abortion. If Scalia was still in the picture, a 5-4 decision would most likely have upheld the abortion restrictions, assuming Justice Anthony Kennedy sided with the conservatives.

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Yesterday’s clear rulings are today murky. As long as Scalia’s seat remains empty, the Court is likely to split 4-4 on these cases, an outcome that affirms the decision of the lower court within its circuit but does not apply the law nationally, preserving the legal status quo. Until a successor is appointed and confirmed, the legal lockjaw will remain.

The weight of the cases before the Supreme Court and the partisan politicization of the judicial nomination process have thrown more fuel onto the 2016 campaign fire. The left’s dread of another Scalia and the right’s fear of another Justice Ruth Bader Ginsburg have raised the ante of the presidential election — at stake is not only four years of federal executive control but decades of judicial green lights.

Supreme Court Justices and their rulings are an important issue among American conservatives. In the eyes of many on the right, decisions on same-sex marriage and the Affordable Care Act are an assault on religious freedom and American values. Maintaining and reinforcing a conservative bulwark against progressive presidents and lawmakers is essential to preserving what they consider the American way of life.

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Republican ire, combined with existing political organising, has the potential to boost conservative electoral turnout in 2016, particularly those strong conservatives who may not have otherwise voted for a hypothetical moderate nominee. Sen. Ted Cruz (R-Texas) arguably stands to benefit the most from this — that extra turnout will comprise voters likely to support him and his familiarity with the Supreme Court could be a further optics advantage.

With the tenor of the Court’s ideological balance at play — potentially for a very long time, particularly if other Justices retire or die during the next president’s term — candidates should offer clear examples of whom they would nominate to replace Scalia. Both Democrats and Republicans should make the contours of their thinking on the next Justice(s) clear to voters.

So who should candidates advance as their choice in order to squeeze out every last drop of American outrage? Well, one possible (read: unlikely) scenario could see Sen. Marco Rubio (R-Fla.) suggest that if he were to win in November, he would nominate Ted Cruz to replace Scalia. Yes, yes, the two aren’t the best of friends and they’re currently competing for a much more glamorous job but it could work out well for Rubio (and Cruz, if his ambitions were to follow his face and melt just a little bit).

Rubio’s more moderate stance (albeit still quite conservative) would be more palatable in a general election than that of Cruz and Rubio would forge a concrete connection with Cruz’s base. Pledging to nominate his rival — an experienced Supreme Court litigator and frequent writer of smarmy amicus briefs — would present a solid proposal to preserve the conservative majority and replace Antonin Scalia with a man of similar intellect, confidence and conviction.

Removing Cruz from the gang warfare of the Republican primary would finally offer Rubio, the single plausible alternative to Donald Trump, as the establishment nominee. This Cuban-American Batman and Robin team could be what’s needed to finally thwart Donald “J for Joker” Trump. Then Cruz’s exile to the Supreme Court would keep one of those meddlesome kids away from Congress. Poor Teddy, martyred for Marco.

Alex Davies is a junior in the College of Arts and Sciences. He can be reached at ajd253@cornell.edu. Have I Got News For You? appears alternate Tuesdays this semester.

Related

ByWilliam A. JacobsonNovember 5, 2016

I’ve been asked to comment on the role of law-related issues in the election, specifically a Supreme Court vacancy and allegations of illegal conduct against each candidate. A Supreme Court vacancy is a pretty perfect ideological issue.